Afghanistan Weighs Use of Islamic Law

Judge Khoja Ahmad Saddiqi could order a thief's hand amputated as punishment, as the former Taliban regime did under their extremist interpretation of Islamic law, known as Shariah.

But in the two years since the Taliban were forced from power, Saddiqi, head of the Afghan Supreme Court's judicial and criminal division, hasn't yet ordered the knife to be used on any crooks.

"If we implement Shariah correctly, there's no need to cut off a hand," and rarely would an execution be handed down by the courts, said Saddiqi, whose thick black beard and swirling turban indicate his status as a mullah, a Muslim cleric who also leads prayers at a Kabul mosque.

As Afghans mark the start Monday of Ramadan — the holiest time of year for Muslims, when they believe God began to reveal the holy book Quran to the Prophet Muhammad — the framers of the country's post-Taliban constitution are debating just how much of those 1,400-year-old lessons to include.

A constitutional commission has been laboring over a draft for months, and its much-delayed release is expected in the coming days. An assembly of representatives from across the country is to consider the draft in December, paving the way for nationwide elections in June 2004.

The implementation of Shariah is especially sensitive here, given its harsh imposition by the Taliban who forced men to grow beards and pray, banned women from schools and most jobs, and toppled walls onto homosexuals to crush them to death.

While recognizing the fundamental fact that Afghanistan (news - web sites) is an Islamic nation — with a nearly 100 percent Muslim population — the latest version of the constitution shies away from mentioning Shariah.

The spirit of the current draft is of "a society that's moderately Islamic but also lives in peace and understanding with the rest of the world," said Jawid Luddin, President Hamid Karzai's spokesman.

Early drafts of the document included Shariah, and conservatives have continued to push for making it the basis of all laws, said Ahmad Nader Nadery, spokesman for the Afghan Independent Human Rights Commission. The group has lobbied the constitution's drafters to remove Shariah and include freedom of religion in the draft law.

"It's very easy to misuse Shariah against the basic rights of people," Nadery said.

Instead of Shariah, the constitution is set to include an article stating that "no laws shall run counter to the sacred principles of Islam," as written in an earlier draft copy obtained by The Associated Press. The country will be officially known as "the Islamic republic of Afghanistan."

It will be left to lawmakers later to iron out how that translates into the specifics of the criminal and civil code. They also will decide whether to legislate other tenets of the Islamic faith, including whether to prohibit alcohol, make adultery a crime and how to sentence thieves.

Especially critical will be how far the laws go to protect women's rights, recalling the harsh discrimination they suffered under the Taliban who forced their virtual disappearance from all public life.

Judge Saddiqi thumbed a white paperback copy of the criminal code from 1976, when Afghanistan was ruled by King Mohammad Zaher Shah, that he still uses today — although he said Shariah law remains his first reference in tricky cases.

He said the Taliban's lightning-speed trials — sentencing a thief one week and having a doctor using anesthesia cut off his hand the next — bore no resemblance to real Shariah law.

Instead, Saddiqi said courts observing Shariah must look at the circumstances surrounding the crime.

"If this thief is stealing out of poverty, if his children are crying for bread, then we should consider this" in the verdict and consider more lenient measures, he said. Saddiqi said women should wear veils according to the Muslim faith, but that doesn't mean they must be cloistered at home as the Taliban required.

"There's a big difference between Taliban law and Shariah law," he said.

While most Arab states define themselves as Muslim nations in their constitution, some call Shariah the basis of their laws and some do not mention Shariah at all. Saudi Arabia enforces a version of Islamic law that is somewhat less strict than the Taliban's.

At Kabul's dilapidated Daral-e-Hafuz madrassah, or religious school, students huddle in windowless classrooms in the half of the building left untouched by rockets and bombs. They were emphatic they don't want anything that comes from the Taliban — but still said Shariah must be part of Afghan law.

For example, Abdul Karim, 17, said banning only the public consumption of alcohol wouldn't be sufficient to comply with Shariah. "At that time we will raise our hands" in protest, he said.

"We do want Islamic law, we want Shariah in our constitution," said the school's deputy director, Mohammadullah, who like many Afghans uses only one name. "We want democracy too, but not like in Western countries, democracy that can respect Islamic laws."